A Brief Overview of US Immigration Benefits for Same-Sex Couples

At one time, the U.S. immigration benefits inherent in marriage were strictly available only to heterosexual couples. That changed in 2013, when the Supreme Court issued its landmark ruling in United States v. Windsor. This widely-acclaimed decision invalidated the Defense of Marriage Act (DOMA), which had previously defined marriage, for all purposes pertaining to federal law, as a legal union between a man and a woman. Since Windsor, same-sex married couples enjoy the same immigration benefits as heterosexual couples.

Green Cards

A gay or lesbian citizen or legal permanent resident of the United States can file an I-130 visa petition to sponsor and ultimately obtain a green card for a foreign-born spouse. The marriage, which may have been celebrated in the U.S. or abroad, must be legal and based on a genuine relationship.

K-1 Fiance Visa

Gay and lesbian U.S. citizens can also file a Form I-129F, or fiancé petition, even if their fiancé resides in a country that refuses to recognize same-sex marriages. The fiancé can then enter the U.S. with the intention of marrying their U.S. citizen partner within 90 days and later file for a green card via the adjustment of status process.

Asylum Petitions

Gay and lesbian individuals who have been granted refugee status in the U.S. have the right to file an I-730 relative petition to have their same-sex spouses join them. If they are in the process of applying for asylum, their spouses may also file as derivative applicants.

Derivative U Visas

Immigrant victims of certain crimes—such as a home invasion, burglary, domestic violence, sexual assault, or kidnapping—who are willing to assist law enforcement in the investigation and prosecution of the crimes committed against them may be eligible to qualify for a U nonimmigrant visa, which after three years with continual presence in the US opens the door to a green card.

The principal U visa holder may also petition for a derivative U visa for qualifying family members. What this means for gay and lesbian immigrants is that if you qualify for a U visa, your spouse and children may also be eligible for a derivative U visa and eventually permanent residence.

Immigration Based on Employment

The same-sex spouses of gay and lesbian foreign nationals entering the United States for employment purposes have certain visa options available to them, including but not limited to:

  • E visa derivative status for the spouses of Treaty Trader (E-1) or Treaty Investor (E-2) visa holders.
  • H-4 visas for same-sex spouses want to join a spouse with a H-1B temporary work visa (intended for those who will be working temporarily in a speciality occupation).
  • L-2 visas for same-sex spouses of those who hold  L-1 visas (for certain employees who are ‘transferring’ from another country to the U.S. to work for the same company).
  • O-3 visas for same-sex spouses of those who hold an O-1 visa for persons of extraordinary abilities, and those who hold an O-2 visa for the purpose of assisting the O-1 visa holder.
  • TD visa status for same-sex spouses of those with TN visa status as a citizen of Canada or Mexico under NAFTA.
  • R-2 visas for same-sex spouses of religious workers employed in the US on an R-1 visa.  

I-601 Immigration Waivers

Foreign nationals facing certain challenges such as a criminal conviction or accusation of unlawful presence may have to apply for an I-601 or I-601A immigration waiver, which requires a demonstration of extreme hardship to a qualifying relative who is either a U.S. citizen or permanent resident. A same-sex spouse can act in this capacity.

At Rotella & Hernandez we take sincere pride in providing immigration support and advice to LGBTQ clients and their spouses. To learn more about what immigration options may be available to you and your spouse, call us today at (786) 571-8472 for our Miami office or (561) 571-0872 for our West Palm Beach office to schedule a consultation.

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